State of Haryana
& Ors. Vs. Rameshwar Dass  INSC 1008 (8 May 2009)
IN THE SUPREME COURT
OF INDIA CIVIL APPELLATE JURISDICTION CIVIL APPEAL NO.3401 OF 2009 (Arising out
of SLP(C) No. 18279 of 2008) State of Haryana & Ors. ..........Appellant
Versus Rameshwar Dass ........Respondent
is an appeal by Special Leave against the judgment and order of the Chandigarh
High Court dated 28.8.2007 which arises in the following circumstances. On
27.6.1984, Rameshwar Dass, respondent before us, was appointed on the post of
Fitter Coolie and subsequently his services were regularized on 1.4.1993.
Meanwhile three other employees were appointed namely, Tej Pal, Rajinder Kumar
and Dharmapal on 5.7.1984, 19.11.1984 and 20.11.1984 respectively, and were
promoted on 26.3.1987 to the post of Water Pump Operator Grade-II and
regularized on 1.4.1993.
respondent went before the Trial Court with the principal plea, that, he is
entitled to be promoted to the post of Water Pump Operator (WPO) Grade-II from
the date when his juniors were promoted to the same post and for other
consequential reliefs. The claim was opposed by the State of Haryana, stating
that the respondent has no locus standi for filing the suit as there is no
cause of action and also it is barred by limitation. It was also alleged that
the co-employees of the respondent, who have been promoted, were appointed in
different circles and did not belong to the Karnal Circle, where the respondent
is continuing his service. Trial Court recorded that the appellants did not
produce any seniority list being maintained at Divisional Level or Circle Level
which could show that Tej Pal, who was appointed just after the respondent, was
not junior to the respondent on the day when he was promoted as WPO on
Similarly is the case
with other employees named Dharam Pal who was appointed on 20.11.1984 and
Rajinder Kumar who was appointed on 19.11.1984. Therefore, on the given date,
respondent was senior to the other employees, who were promoted. Regarding
locus standi and cause of action to file the suit is concerned, it was held
that the cause of action is recurring and accrues every month when the benefit
for promotion is denied to the respondent. Accordingly, the Civil Suit was
dismissed by the Trial Court granting relief to the respondent herein to the
extent that he may be promoted to the post of WPO from 26.3.1987 and his salary
accordingly be fixed.
the said judgment the appellants went before the Appellate Court contending
that the seniority of work charge employees is maintained at Divisional Office
Level and that of regular employees is maintained at Circle Office Level. Since
respondent and other co- employees being work charge employees, at the given
time, their seniority was being maintained in respective divisions, therefore,
there was no necessity of maintaining seniority in different divisions
First Appellate Court affirming the findings of the Trial Court observed that
the respondent was appointed as Fitter Coolie on 28.6.1984 in the Karnal
division and was regularized on 22.1.1994 on the same post and other
co-employees, Tej Pal was appointed as electrical helper on 5.7.1984 in the
Karnal division and was promoted to the post of WPO 22.1.1985, but was
regularized only on 1.2.1994 and Rajinder Kumar was appointed as
Mali-cum-Chowkidar on 19.11.1984 in the Kaithal division and was promoted to
the post of WPO after being regularized on 21.1.1985. The Deputy Superintendent
of appellants department admitted that prior to 1998 all the employees such as
Fitter Coolie, Mali-cum- Chowkidar, Keyman etc. used to be promoted as WPO.
Thus, it becomes evident that respondent was senior to other co-employees.
similar case was brought to the notice of the First Appellate Court, Om Prakash
Bairagi v. State of Haryana, wherein one Chander Prakash, junior to the Om
Prakash, was promoted earlier to Om Prakash as WPO. The Trial Court in the said
case held that Om Prakash was entitled to be promoted to the post of WPO from
the date on which his junior Chander Prakash was promoted, which was confirmed
by this Court.
First Appellate Court after considering submissions of the learned counsel for
the parties and documents on record, has come to the conclusion that the
respondent ought to have been promoted from the date when his junior Tej Pal
was promoted and modified the relief granted by the Trial Court to the extent
that the respondent is entitled to the arrears of salary for a period of three
years prior to the date of filling of the suit.
appellants then moved an appeal before the High Court inter alia challenging
the correctness of the order passed by the First Appellate Court. The High
Court upholding the findings of the First Appellate Court dismissed the appeal.
only point that would arise for our consideration in the present appeal is,
whether the respondent is entitled for promotion and consequential benefits
from the date claimed despite the fact that the employees whom the respondent
is trying to compare, belong to different divisions.
behalf of the appellants, it is contended that seniority of work charge
employees is maintained at Divisional office level and that of regular
employees made regular from work charge cadre from time to time is maintained
in Circle office level. The employees who were promoted prior to the respondent
belong to different circles or divisions therefore the respondent is not
entitled for any promotion.
counsel for the respondent has argued that the respondent being the senior most
employee was not considered for promotion for the post of WPO while his juniors
were promoted, and therefore he is entitled for the promotion and all the consequential
benefits including the entire back wages.
is beyond doubt and in fact admitted by the appellants that the respondent was
appointed prior to other employees but was not promoted to the post of WPO. In
all the replications filed before the Courts, the appellants have mainly
stressed only on the ground that the other employees, who were promoted, were
appointed in different divisions and were promoted in those Divisions, and
accordingly the claim of the respondent is not maintainable. It may be
incidentally pointed out that the appellants in their petition have made some
vague allegations suggesting that the respondent belongs to the work charge
category and not regular employees category.
High Court while considering the submissions made by the learned Counsel for
the parties to the lis has observed that nothing has been produced by the
appellants which could show that the Electrical Helper, Mali-cum-Chowkidar and
Filter Coolie were having separate seniority lists in the year 1987.
is evident that the appellants, while appointing the respondent and other
employees, did not put them in different heads, cadres, circles or divisions,
as the case may be, for the purpose of seniority. Therefore, when the
appellants were giving promotions amongst the Grade IV employees for the post
of WPO, they should have considered every employee, including the respondent,
irrespective of the aforesaid categories and according to the seniority and
Court in the case of State of Orissa v. Durga Charan Das, (1966) 2 SCR 907, has
stated that the promotion to a selection post depends upon several relevant
factors, the number of vacancies in the posts is one factor; the number of
persons eligible for the said promotions is another factor; and the seniority
of the said competitors along with their past record and their merits, is yet
was also observed by this Court in the case of Brooke Bond India (P) Ltd. v.
Workmen, (1963) 1 LLJ 256, that at a given time, if more than one person are
eligible for promotion, seniority should be taken into account and should
prevail unless the eligible persons are not equal in merit.
the case of Direct Recruit Class II Engg. Officers' Assn. v. State of
Maharashtra, (1990) 2 SCC 715, wherein it has been held by this Court that once
an incumbent is appointed to a post according to the rules, his seniority has
to be counted from the date of his appointment and not from the date of
Court in the case of State of U.P. v. Dinkar Sinha, (2007) 10 SCC 548, held
that the seniority may not be a fundamental right, but is a civil right.
Infringement of the said right would be permissible only if there exists any
rules validly framed under a statute and/or the proviso appended to Article 309
of the Constitution of India.
respondent in the present case was in no way at fault. He had served faithfully
in various capacities without any blemish from 27.7.1984. The treatment meted
out to the respondent can be characterized as discriminatory. Thus, appellants
should have promoted the respondent before promoting other employees according
to the seniority of the employees.
view of the above discussions, the appellants are directed to give promotion to
the respondent with effect from 26.03.1987 and consider his name for further
promotions and benefits on the basis of seniority.
are directed to pay only Rs. 35000/- in full and final settlement for all his
the aforesaid modifications, the appeal is dismissed. No order as to costs.
[ H.L. DATTU ]